injustice or gives no or insufficient weight to relevant considerations: Penner,at para. 27.

[84] In my view, having determined that the trustee’s personal
undertaking was insufficient, the motion judge was clearly
wrong on the basis of the evidence and more particularly the
lack of evidence in holding that Emerald Plantation’s undertaking was sufficient. Emerald Plantation was not a party to the
action. It had filed no affidavit and was not subject to cross-examination concerning the undertaking. Emerald Plantation is
a foreign entity and there was no evidence that it had sufficient
assets within the jurisdiction, let alone any assets, to satisfy any
potential damages the appellant might suffer. The concern the
motion judge expressed with respect to adequacy of the trustee’s
personal undertaking was also present in respect of Emerald
Plantation’s undertaking.

[85] Given the potential damages that can arise from a
Mareva improperly issued, the undertaking to abide by any
order of the court concerning those damages must be meaningful
and have substance. The motion judge was aware that in order
for the trustee’s undertaking to be acceptable, there had to be
evidence of assets in the jurisdiction to support the undertaking.
To permit Emerald Plantation’s undertaking in the absence of
any evidence of assets in the jurisdiction or any posted security
was clearly wrong in my view. Further, it creates an injustice in
that the undertakings of both the trustee and Emerald Plantation have no substance given the absence of either assets in the
jurisdiction or posted security. In such circumstances, the undertakings are unenforceable by the court and therefore of no protection to the appellant.

[86] For the same reasons, I am of the view that the motion
judge’s decision that the undertaking of Emerald Plantation was
sufficient to cover the appellant’s request for security for costs
was also clearly wrong.

[87] As a result, I would also allow the appeal in respect of the
issue of the adequacy of the undertakings. If the issue of the
undertakings was the only issue before us, I would remit the
question of the undertaking back to the motion judge for reconsideration. Such an order is not necessary, however, given that I have
concluded that the motion judge erred in granting the Mareva.

[88] For the above reasons, therefore, I would allow the
appeal, set the Mareva injunction aside and refer the matter
back to the motion judge for a determination of the damages suffered by the appellant, if any.